COURT FILE NO.: CV-18-22
DATE: 20191129
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: I-Land Corp Ltd. v. Lloyd Ffrench
BEFORE: Daley RSJ.
COUNSEL: in chambers
HEARD: November 29, 2019
C O S T S E N D O R S E M E N T
[1] As set out in my reasons for decision in this matter, which were released on November 13, 2019, the defendant/plaintiff by counterclaim's motion for summary judgment was granted dismissing the plaintiff/defendant by counterclaim's action.
[2] For the reasons outlined, the defendant's counterclaim was directed to proceed to trial and summary judgment with respect to the counterclaim was denied.
[3] Cost submissions were filed by both parties.
[4] Counsel for the plaintiff/defendant by counterclaim provided written submissions as to costs, however no costs outline was provided as was ordered in my endorsement. Counsel submitted that if a costs endorsement was required, he would later file same. That is not what was ordered and as such I am proceeding with consideration of the cost submissions without a costs outline on behalf of the plaintiff/defendant by counterclaim. Counsel for the defendant/plaintiff by counterclaim served and filed cost submissions along with a costs outline.
[5] It was submitted on behalf of the plaintiff/defendant by counterclaim that as the defendant/plaintiff by counterclaim has been self-represented throughout much of the litigation thus far, up to the time of the preparation of the motion materials regarding the summary judgment motion, the costs incurred have been duplicated by the agent lawyer retained by him.
[6] Counsel for the plaintiff/defendant by counterclaim submitted that if costs were to be considered the determination of costs should be left to the trial judge hearing the defendant's counterclaim rather than being awarded at this stage in the proceedings.
[7] As to the degree of success achieved, I have concluded that the defendant/plaintiff by counterclaim, although not successful on his motion for summary judgment, did achieve far greater success than the plaintiff/defendant by counterclaim given that the main action has been dismissed. In the result, I have concluded that the defendant/plaintiff counterclaim is entitled to costs of the motion.
[8] The determination of what costs are fair, reasonable and proportionate involves consideration as to the defendant/plaintiff by counterclaim's status as a self-represented litigant, for at least part of the proceedings leading to the summary judgment motion, with the balance of the time being spent by his agent lawyer, counsel who appeared on the motion.
[9] Notably, this is a simplified procedure action under Rule 76, and this represents a factor that must be taken into account when determining reasonable and fair costs.
[10] The defendant by counterclaim's agent counsel submitted a costs outline and this included a claim for costs in the order of $16,484.90 relating to the legal services provided by the defendant/plaintiff by counterclaim himself, and in addition to that costs is an appearance fee for counsel were added in the order of $9,250 along with disbursements of $590.10 for a grand total of $26,325. The costs as claimed include the costs of two attendances in court: namely on March 1 and February 12, 2019 in respect of which the plaintiff had been seeking $7,500 in costs in respect of those two court appearances.
[11] In its decision in Fong v. Chan 1999 2052 (ON CA), [1999] O.J. No. 4600, the Court of Appeal confirmed that the preponderance of modern authority supports the proposition that self-represented lay litigants may be awarded costs, however this does not suggest that a self-represented litigant has an automatic right to recover such costs. The matter remains fully within the discretion of the judge. It was noted that a self-represented litigant, while entitled to costs possibly, is not entitled to costs calculated on the same basis as those of the litigant who retains counsel.
[12] Having considered the cost submissions of both parties, and the costs outline submitted on behalf of the defendant/plaintiff by counterclaim, and in the absence of any such costs outline submitted on behalf of the plaintiff/defendant by counterclaim, I have determined that the defendant/plaintiff by counterclaim is entitled to costs in the all-inclusive sum of $10,000.
[13] Absent a costs outline being submitted on behalf of counsel for the plaintiff/defendant by counterclaim, I have concluded that I can reasonably infer that the costs incurred by that party are equal to or greater than the costs claimed by the defendant/plaintiff by counterclaim and that as such the plaintiff/defendant by counterclaim should reasonably have anticipated an award of costs in keeping with the award I have made even taking into account the fact that the defendant/plaintiff by counterclaim carried out some of the legal work in this action without the assistance of counsel.
[14] In the result, the plaintiff/defendant by counterclaim shall pay to the defendant/plaintiff by counterclaim costs in the all-inclusive sum of $10,000, within 30 days from the date of the release of this endorsement. An order shall issue accordingly and approval as to the form and content of the draft order is dispensed with.
Daley, RSJ.
DATE: November 29, 2019
COURT FILE NO.: CV-18-22
DATE: 20191129
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: I-Land Corp Ltd. v. Lloyd Ffrench
BEFORE: Daley, J.
COUNSEL: Steven Sinukoff, for the Plaintiff Abba Chima, agent for the Defendant
COSTS ENDORSEMENT
Daley, RSJ.
DATE: November 29, 2019